Drug Crimes

Legal Immigrants Should Not Automatically Be Deported For Minor Drug Offenses

Published on: July 14, 2010 | by Lasnetski Gihon Law

The United States Supreme Court recently ruled that legal immigrants should not be automatically deported after being convicted of minor drug crimes, although federal authorities may classify a second minor drug offense as an aggravated felony. Under federal law, legal immigrants are supposed to be deported after a conviction for an aggravated felony. The question then is: what is considered an aggravated felony? In the past, under federal immigration law, federal authorities were able to characterize a second minor drug crime like possession of marijuana or possession of a small amount of pills as an aggravated felony, and deportation proceedings were initiated. However, the USSC has ruled that minor drug crimes where defendants typical receive probation or a minimal jail sentence were not intended to be aggravated felonies. Felonies are defined as more serious crimes for which a person can be imprisoned for at least one year.

This Supreme Court ruling does not mean that no legal immigrant convicted of relatively minor drug crimes will be deported. What it does mean is that deportation proceedings should not be automatic for minor drug convictions because a second minor drug conviction should not be characterized as an aggravated felony. However, it is certainly still possible that a legal immigrant convicted of a drug offense, whether misdemeanor or felony, may be deported.

Drug Case Dismissed After Police Illegally Enter Suspect’s Home

Published on: June 30, 2010 | by Lasnetski Gihon Law

In a recent trafficking in cocaine case that occurred south of Jacksonville, Florida, the criminal case was dismissed after the court found that the drugs were illegally seized when the police entered the defendant’s home without consent, a search warrant or exigent circumstances. In order for the police to lawfully enter one’s residence, they must either have consent to enter, a valid search warrant or emergency circumstances.

In this case, the suspect called the police after a robbery occurred at his apartment. The police arrived approximately 30 minutes after the robbers left the apartment. When the police arrived, the robbery was clearly over and there was no indication that any of the robbers were in the area. However, the police entered the defendant’s apartment without permission and found cocaine and other drugs inside. At that point, the person who called the police was arrested for trafficking cocaine and possession of illegal pills.

The criminal defense lawyer for the defendant filed a motion to suppress the drugs found in the apartment and asserted that the police did not have a right to be in his apartment in the first place since the defendant did not give them permission to enter, the police did not have a search warrant and there were no exigent circumstances allowing the entry and search. The state argued that the recent robbery provided the exigent circumstances to justify the entry and search. The state argued that because a robbery had just occurred and the suspects could be inside the apartment, the police had a right to look for them. This might be true and a legitimate basis for a search without a warrant if the robbery was recent and there were some specific facts leading the police to believe the robbers were still in the apartment. However, the police could not point to any specific facts indicating there was anything in the apartment related to the robbery that needed to be searched on an emergency basis. As a result, there was no legitimate basis for the police to enter the apartment, and the search for the drugs was found to be illegal. The drugs were thrown out of court along with the drug charges.

New Product Supposedly Easily Tests for Drug Use

Published on: June 27, 2010 | by Lasnetski Gihon Law

Drug tests are used for a variety of reasons in the criminal justice system. They are used by pretrial services in Federal court to see if a person recently arrested tests positive for drugs in reference to a bond request. They are used by the probation officers in the state system to make sure probationers are not using drugs. A positive test in either circumstance can result in the person being in violation of his/her probation and being put back in jail. Employers, school officials, coaches, parents and others may use drug tests for various reasons.

According to a recent article, a new product called DrugWipe, is available that can tell is a person has used seven different kinds of drugs with 100% accuracy, according to a recent article on News4Jax.com. According to the manufacture of DrugWipe, the product is wiped across a non-porous surface that the person has recently touched, and it can determine if that [person has used one or more for the various illegal drugs. Currently, drug testers typically use urine tests. There are certain products on the market that can mask the results of a urine-based drug test. Additionally, those tests can only show the results of certain types of drugs.

It remains to be seen whether this new product is accurate in detecting drugs in a person’s system.

Police Arrest Suspect Outside Home, Cannot Search Inside Home For Drugs

Published on: June 12, 2010 | by Lasnetski Gihon Law

In a recent drug case that occurred south of Jacksonville, Florida, police had information that heroin, marijuana and other illegal drugs were being kept and sold at a particular house. The police conducted surveillance of the house and saw one person exit the house and sell drugs to a customer. The police ultimately arrested that person for sale of heroin in the front yard of the house. Upon arrest, the police observed that the front door was open and people were in the house. The police went inside the house without a search warrant and found more heroin, marijuana and other drugs. The other occupants of the house were then also arrested for trafficking and possession of heroin and illegal drugs.

The criminal defense lawyer for the defendants filed a motion to suppress evidence of the seized drugs based on the fact that the police search of the house was unlawful. The general rule is that police cannot enter and search a person’s house without consent or a valid search warrant. There are exceptions. For instance, when the police make an arrest, they are permitted to search the immediate area to make sure there are not any threats to the safety of the officers. This is called a protective sweep. However, the police cannot do this automatically. There must be evidence indicating there is may be some threat to the police officers. In this case, there was no specific evidence indicating that there was anything in the house that was a threat to the police officers who made the arrest outside of the house. There was no evidence that anyone in the house was armed or any threat to any police officer. As a result, the police did not have a right to enter and search the house for drugs without consent or a search warrant. Because the search was unlawful, all of the evidence of the heroin, marijuana and other drugs in the house was thrown out.

The War on Drugs Has Failed. . . And Was Pretty Expensive Too

Published on: May 31, 2010 | by Lasnetski Gihon Law

A recent article has concluded something just about all of us already knew- not that 2 + 2 = 4, but something much more fundamental: that the war on drugs was a catastrophically expensive failure. The article notes that even the U.S. drug czar acknowledges that the war on drugs has not worked. As a result, the Obama administration has decided to focus more on prevention and treatment and less on wasteful enforcement of ineffective criminal laws.

The article is worth reading and gives a brief, but interesting, history of U.S. drug policies. One troubling part of the article notes that the first war on drugs budget was $100 million in the 1970’s. Now, it’s $15.1 billion. It is scary to think where all of that money is going, why it’s being spent and how much of it is wasted.

Florida Trafficking in Cocaine Case Thrown Out Because Search Took Too Long

Published on: May 25, 2010 | by Lasnetski Gihon Law

In a recent trafficking in cocaine case that took place a couple of hours south of Jacksonville, Florida, a police officer found cocaine in a person’s vehicle and arrested him after a long police encounter that was initiated as merely a traffic stop. Because the police officer too too long to conduct the search, the court ultimately threw the case out due to an illegal search.

Many drug arrests start out simply as traffic stops but turn into something more serious after the police officer searches the car. Once the police officer has stopped the driver for speeding, running a red light or some other traffic violation, the police officer may try to look for a way to conduct a search of the vehicle. Most of the time, the police officer will simply ask the driver for consent to search the vehicle. Everyone should understand that they have an absolute right to refuse when a police officer asks for permission to search a vehicle or anything else owned by that person.

If the police officer cannot get consent to search, he/she may look for evidence that drugs or other evidence of illegal activity are in the vehicle and use that as a basis for a search. However, if the basis for the traffic stop was a traffic violation, the police officer has limited time to come up with such evidence. The police officer cannot ask a bunch of questions or make up reasons to keep the driver at the scene while he/she waits for a drug dog to show up. If the police officer cannot uncover specific evidence of illegal activity within the time it would take to write a normal citation or warning for the traffic violation, he/she cannot extend the encounter in the hopes that incriminating evidence will surface or the drug dog will get there to sniff the vehicle. Once the time necessary for the traffic violation investigation has elapsed, the police officer has to let the driver go if no other incriminating evidence is revealed. If the police officer keeps the driver at the scene any longer, any evidence that is ultimately uncovered should be thrown out of court pursuant to the criminal defense lawyer’s motion to suppress.

State Must Still Prove Elements of Constructive Possession for Violation of Probation Cases

Published on: May 17, 2010 | by Lasnetski Gihon Law

In Jacksonville and throughout Florida, when a person pleads guilty or no contest to a crime or has a trial that ends in a guilty verdict, the judge will sentence the defendant. For more serious crimes, that sentence may include jail or prison time, probation or a combination of the two. When a person is on probation, he/she will have certain conditions with which he/she must comply or risk going back in front of the sentencing judge, having the probation revoked and being re-sentenced to harsher penalties. Prior to any sentence for a violation of probation, the defendant is entitled to a hearing on the probation violation allegations. These hearings are unlike a trial in two major ways. First, the judge decides whether the defendant violated his/her probation. A defendant does not have a right to have a jury decide probation violation cases in Florida. Second, the legal standard is lower for probation violation cases. In regular criminal cases, the state must prove the defendant is guilty by the “beyond a reasonable doubt” standard. In probation violation cases, the state need only prove a violation(s) occurred by “a preponderance of the evidence” standard, which is much lower. That latter standard is basically a “more likely than not” or “50% plus 1” standard.

A new crime committed by the defendant can certainly be the basis for a violation of probation case if the defendant was on probation when the new crime occurred. However, when the alleged violation of probation is a new crime, the state must still prove the elements of that crime. If the new alleged crime is a possession of marijuana or other illegal drug case and the state is relying on a constructive possession theory, the state must prove the elements required for constructive possession.

As we have written several times in the past, the state can prove possession of illegal drugs in two general ways. Actual possession is what it sounds like- a person is holding the drugs or has them on his person. Constructive possession deals with drugs near a person or in a place the person controls (such as his/her car or home) where the person knows the drugs are there and has the ability to exercise dominion and control over the drugs. Where drugs are near a person or in a place he/she is commonly found but the person does not know the drugs are present, the elements of constructive possession are not met and the person is not guilty of possession of the illegal drugs. This is true whether the allegation is a new drug possession charge or a violation of existing probation.

Jacksonville, Florida Couple Arrested for Growing Mushrooms

Published on: May 14, 2010 | by Lasnetski Gihon Law

Police searched the home of a Jacksonville, Florida couple on East Stanford Road and found illegal mushrooms growing in one of the closets, according to an article on News4Jax.com. The criminal drug statutes in Florida cover possession and manufacture of many illegal drugs including these kinds of mushrooms. However, in cases such as this where the police go into someone’s home based on an anonymous tip, the search of the house and seizure of the mushrooms may not be legal. Police often get anonymous tips about certain allegedly criminal activity, but that kind of tip alone does not authorize the police to search someone’s house.

Under the Florida and U.S. Constitutions, a person has a strong privacy interest in being free from illegal searches and seizures in his/her home. Because of that Constitutional protection, the police cannot just come into a person’s home, or get a search warrant, based on an anonymous tip. The tip has to be specifically verified or corroborated before it can even be considered as a legitimate basis for a search. Any time an anonymous tip is used by the police as a reason for a search, the criminal defense lawyer should closely scrutinize all of the facts the police allegedly had to justify the search and consider a motion to suppress any evidence found as a result of the search based on the defense that the search was illegal. If the search is found to be illegal, any evidence of illegal drugs found during the search will be thrown out of court.

Drug Trafficking Laws Don’t Favor the Poor and Uninsured

Published on: May 8, 2010 | by Lasnetski Gihon Law

Many people in Florida and throughout the country face serious challenges in getting basic health care. They do not have access to doctors and other medical providers nor do they have the ability to obtain prescriptions for necessary painkillers and other drugs used to treat their various medical conditions. These people are often forced to obtain medicine, which includes prescription drugs and controlled substances, in less traditional ways. The Florida legislature has addressed this issue by making crimes and penalties for the illegal possession of prescription drugs more extremely severe.

For instance, most people think of drug traffickers as people involved in moving large amounts of illegal drugs through the state. However, in order to qualify for drug trafficking of illegal pills such as Hydrocodone, Xanax, Percocet, Vicodin, Oxycontin and others, a person only needs to have four or more grams of illegal pills in his/her possession. Four grams are far from a large amount and what a normal person would expect to be a trafficking amount. In fact, for people who are prescribed painkillers by a doctor, four grams are within a normal daily prescription amount, although at the very high end for one day. So, contrary to what people might believe about the crime of drug trafficking, being in possession of a daily dose of illegal pills (i.e. without a prescription) may subject someone to a charge of drug trafficking. By contrast, a person must possess more than 25 pounds of marijuana to reach the first level of trafficking marijuana.

Despite the very low threshold for the crime of drug trafficking of various pills in Florida, the penalties are still very severe. There are different levels of drug trafficking in Florida. At the lowest level is someone in possession of 4 or more grams but fewer than 14 grams of pills. That person faces a minimum mandatory sentence of three years in prison and a potential maximum sentence of thirty years in prison. In other words, if a person has a daily dosage of Vicodin or other prescription drug without the prescription, he/she faces at least three years in prison if charged and prosecuted for trafficking. If a person has 14 or more grams of a controlled substance in his/her possession but less than 28 grams, which is still not a extremely large amount and reasonable for someone who has a condition that causes him/her severe pain, the minimum mandatory penalty is 15 years in prison.

Cook at Flagler County, Florida Jail Arrested for Bringing Drugs Into Jail

Published on: April 20, 2010 | by Lasnetski Gihon Law

A cook working at the Flagler County, Florida jail was arrested for allegedly bringing drugs such as Oxycontin into the jail and giving them to inmates, according to an article on Firstcoastnews.com. Unauthorized possession of prescription drugs like Oxycontin is illegal, but bringing Oxycontin and other things that are not permitted into the jail for the inmates is a separate felony crime in Florida.

Under Florida criminal law, it is a felony to bring into a county jail or detention facility, or attempt to do so, anything the law considers contraband without going through the normal procedures set forth by the sheriff operating the jail. Contraband does not just cover the obvious things like illegal drugs, prescription drugs and weapons, it also includes money, written or recorded communications, food, clothing, tobacco products, medicine and other items. Some of these things can be brought to inmates in the local jails, however, they must first be authorized through the normal channels.